' MIAN SAQIB NISAR, J.---The following appeals L.As. Nos.159/2004, 160/2004, 161/2004, 162/2004, 163/2004, 64/2004,165/2004, 166/1004, 167/2004, 168/2004, 169/2004, 170/2004,171/2004, 172/2004, 173/2004, 174/2004, 175/2004, 176/2004,177/2004, 178/2004, 179/2004, 180/2004, 181/2004, 182/2004,183/2004, 184/2004, 185/2004, and 237/2004, involve common questions of law and facts and are directed against the single judgment of the learned Labour Court, whereby the grievance petitions of the appellants, were dismissed, therefore, all these matters shall be disposed off through this decision.
2. At the very outset, Mr. Faqoor Zaman Qureshi, the learned counsel for the appellant has stated that the noted appeals fall into two categories; first are the cases, in which, the appellants had filed the grievance petitions, seeking their regularization in the service, on account of the expiry of the probationary period, whereas in the other category, the appellants challenged the termination of their employment. He, however, promised to provide a list in this behalf, but the needful has not been done. It may also be pertinent to mention that Mr. SaleemSehgal, the learned counsel for the respondents, has vehemently controverted that any of the appellants has filed the grievance petition, on account of his alleged termination.
3. Be that as it may, this aspect shall be considered and determined, if it has any significance in the matter.
4. Briefly stated the facts of the case are, that the appellants afterservice of the grievance notices dated 14-4-2003 upon the Managing Director of the Millat Tractors Private limited (respondents No,1), filed grievance petitions before the learned Labour Court, stating therein that the appellants were employed in the Millat Tractors Ltd. Against work and posts of permanent nature; they were designated as Technician, Crane Operator, Drivers, etc. In different sections of the respondents' factory and since the date of their respective appointment, they are performing their duties regularly; thay have rendered 3 to 16 years regular service, but till date, have neither been treated as regular/permanent employees nor are being paid the benefits available to a permanent workmen. It is further stated in the petition, that although, by operation of law, the appellants have attained the status of permanent workmen on the completion of their statutory period of probation as envisaged under Standing Orders, Ordinance 1968, but in utter disregard and violation of the provisions of law, the appellants are being denied their valuable rights; that at the time of their respective recruitment, the required letters of appointment contemplating the terms and conditions of their service were not issued, obviously this was objected to avoid the payment of all those benefits, which are available to the permanent employees; the names of the appellants were not got registered with Social Security Department, the cards of employment were also not issued to them; the appellants infact are being discriminated, as they are not paid yearly bonuses; the amount of 5% workers participation fund, which is paid to other factory workers; the appellants have not been even got ensured under the Standing Order 10 (b), which is mandatory requirement of law; they are not being granted the leave facilities annually or for the casual and other leaves and are made to work for more than nine hours a day without weekly holiday or sick leave allowed to them.
' Thus, on the basis of the above facts, the following relief was claimed:-- "It is therefore, respectfully prayed that by accepting the present petition, the respondents may be directed to treat the petitioners as a permanent workmen from the dates, they completed the statutory period of probation, against the posts of permanent nature and be granted all the benefits available to permanent workman employed in the establishment. The respondents may also be directed to pay/grant the petitioner amount of bonuses, workers participation fund, leave facility, registration with Employees Old-age Benefits Incentive Scheme, registration with Social Security institution and also registration for insurance under Ordinance 10 (B) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968."
"The respondents may further be directed to pay the petitioners the arrears of the above referred bonuses.
' Pending disposal of the petition, the respondents may be restrained from removing/retrenching or terminating the petitioners from service."
5. The petitions were resisted by the respondents and in theirwritten reply, the pleas of limitation; the jurisdiction of the Labour Court, mis-joinder of causes of action were raised and specifically it is mentioned that according to the contents of the grievance petition, at the best, the appellants are the daily wagers and therefore (1) such daily wagers are not issued any letter of appointment, thus they do not complete probation as they do not work against any post of permanent nature (ii)
They are paid their wages daily. They are not paid for weekly and gazetted holidays (iii) Daily wagers are hired by the Company as and when and whenever required by the Company, therefore, there is a time and again discontinuity in their engagements as Daily Wagers being no longer required. The averments of paragraph No,1 of the grievance petition, in which the assertion about the appellants working against a permanent post and performing the duties of permanent nature, has been made, were categorically and unequivocally denied, in reply, addingThereto "Suffice it to state that the petitioners worked with theCompany, as Daily Wagers from time to time subject to the entitlement of a Daily Wager. They cannot hence, claim to be workmen of the company in law and facts, inasmuch as inter alia they were not hired as Daily Wagers to work against any work or post of permanent nature".
6. On account of their divergent pleadings, the parties were permitted to adduce the evidence; the appellants in their respective cases, examined certain witnesses, they also either appeared personally or through attorneys and the trend of all these testimonies, is towards the prove of the factum that they have been working in the respondents' factory for a particular length of time, which is beyond the statutory period required for the probation and performing duties of the permanent character against a permanent post, but for extraneous reasons, they were not made permanent and are being kept as daily wagers. The respondents also examined Assistant Manager Legal as RW-1; certain documentary evidence was also brought on the record by the parties and on the conclusion of the trial, the learned Judge was pleased to dismiss the grievance petitions, mainly on three counts:-- ' Firstly.--In the grievance petitions, no date of the accrual of cause of action has been mentioned; the appellants have not stated that as to when the cause of action first accrued to them; when allegedly did they completed their probationary periodagainst a permanent post; they have also not mentioned that when second cause of action had accrued to them, when did they demanded their regularization as the permanent workmen and refusal by the management of the respondents' company was made, giving rise to the final cause of action, therefore, the Court held "The absence of said mandatory provisions of law, will render the grievance notices and the petitions invalid and not maintainable under law and such grievance notices will not attract the jurisdiction of the labour Court".
Secondly.--The grievance notices, the service of which upon the concerned person i.e, the employer was sine qua non for the maintainability of the petition, have not been served upon the Factory Manager, ,rather the Managing Director of the respondents, therefore "The non-service of grievance notice to the employer by the employee will render this Court having no jurisdiction to pass any order regarding redressal of any grievance of the petitioners".
Thirdly.--That the appellants have failed to prove that they have been working against permanent post for a long time without any break, and has attained the status of a permanent workman.
According to the learned Judge, "they, were under legal obligation to adduce evidence to the effect that they had been working continuously for over nine months or that any of them had ever completed the statutory probationary period against any particular post, which was sanctioned on permanent basis. They could conveniently summon record of the respondents establishment pertaining to the sanction and continuation of the post on year to year basis so as to prove their plea that each one of them held the sanctioned post on permanent basis at least for the statutory period so as to enable them to assert eligibility to claim regularization of their service against 'particular post." On the subject, it was further dialted "No document, instrument, data or material was confronted with the RWs during the course of their cross-examination, which could reveal that petitioners had occupied permanent posts for the statutory period. The aforementioned verbal evidence adduced in this respect, in absence of ally corroboration does not inspire confidence.
Under the circumstances, the petitioners have failed to discharge their onus to prove regarding their eligibility to be deemed/treated as permanent workmen."
' On the basis of the above, as mentioned earlier, all the grievance petitions were dismissed through the impugned order dated 8-4-2004. Hence these appeals.
6. Mr. FarooqZamanQureshi, the learned counsel for the appellants, has argued that all the reasons propounded by the Labour Court, are erroneous and illegal. It is submitted that the grievance notice was served upon the Managing Director, who according to the Articles of Association, of the respondents is the administrative Head of the Establishment and is the person, who is responsible for the administration, management and the control of the establishment, therefore, squarely falls within the definition of the employer given in the section 2(x)(b) of the Industrial Relations Ordinance, 2002.
7. As regards the limitation and the cause of action, that the same is reaccruing in the nature and therefore, the appellants could serve the grievance notice upon the respondents according to their choice and the option about time, followed by the grievance petitions within 30 days, which is the admitted position in the matters.
8. On the proposition, whether the appellants were necessarilyentitled to be regularized, as having completed their probationary period of nine months against a permanent post, it is argued that the jobs on which, the appellants were made to work as Daily wagers, were in fact permanent in nature and the appellants throughout have been performing duties of permanent character; they have been paid salaries for the whole of the month, including weekly holidays, as also other public holidays; they were also paid bonus and therefore, for all intents and purposes , the appellants were the permanent employees.
9. Mr. FarooqZamanQureshi, has also made reference to certain provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI) of 1968), such as Schedule 1, to submit that according to the classification of the workmen, there are five categories; (1)
Permanent; (2) probationers; (3) badlis; (4) temporary; (5) apprentices. Each class has been defined and the respondents are precluded to employ any person on daily wages, which shall tantamount to circumvent and defeat the statutory provisions of the law; he also argued that the respondents under Standing Order 2, were obliged to issue a ticket or a apprenticeship card to the appellant, which was not done. Under Standing Order 12(2), the employment of a workman whatever class he belonged could not be terminated without their being an order in this behalf and every workman was entitled to a notice about the termination of the service. But the above provisions have been deliberately flouted by the respondents, with the object that the appellants should not attain the fruits of the rights available to them, as the permanent workmen. Mr. Qureshi, categorically argued that such intentional actions and inactions/omissions on part of the respondents, is a fraud upon law. In support of his various contentions, learned counsel has relied upon the judgment reported as National Bank of Pakistan andanother v. Punjab Labour Appellant Tribunal and 2 others (1993 SCMR 105 at page 111), Syed Nasir Abbas Naqvi v. Punjab Lahore Appellate Tribunal (2003 PLC 443), United Bank Limited. v. Sindh Labour Appellate Tribunal Karachi and 42 others (1997 PLC 446), M/s. Fauji Sugar Mills, Khoski, District Badin v. Ali Nawaz and 2 others (1997 PLC 451), The Resident Manager FFC v. Punjab Labour Appellate Tribunal. Lahore and 2 others (1991 PLC 908 at 912), Forbes Campbell and Co. Ltd and 3 others v. Bs. HabiburRehman and 2 others (1982 PLC 20 at 21 and 22) and Ikram Bari and 524 others v. National Bank of Pakistan through President and others (2005 SCMR 100.).
' Further on his submission that every workman even a daily wager cannot be terminated, without the letter of termination, learned counsel has relied upon the cases reported as Govt. Of Punjab and others v. Punjab Appellate Tribunal, Lahore and others (2002 SCMR 878), Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sergeant Traffic (1996 SCMR 826), Muhammad Aqil v. Sindh Labour Appellate Tribunal and another (PLD 1978 Karachi 649) and M/s. Holiday Inn, Crown Plaza Main Shahrah-e-Faisal Karachi v. Aftab Ahmed Siddiqui and another (2000 PLC 325).
10. Mr. SaleemSehgal, the learned counsel for the respondents has supported the impugned judgments; he however, submits that according to the case of the respondents, their services have been eventually terminated, but the order of termination has not been challenged independently and even no amendment was sought in the pending grievance petitions, to claim relief against the alleged termination, resultantly, the grievance petitions in the situation, were rendered infructuous; he further submits that one of the essential facts, which is most expedient for the consideration is that according to the agreement between the respondent's company and the CBA of the Millat Tractor, there are 325 permanent workmen employed and this has been so admitted by Muhammad Ashraf, while appearing as AW-1 in the case of Pervaiz v. The respondents; the said Muhammad Ashraf, was the then Secretary General of the CBA and has also made reference to the said agreement. On the strength of the above fact, it is submitted that when the appellants were not working against either of above-mentioned permanent post, they cannot under the law, seek the relief of their regularization or the permanent employment.
11. I have heard learned counsel for the parties. As regards the question about the service of the grievance notices is concerned, this is a mandatory requirement of law, and non-compliance thereof renders a grievance petition incompetent. However, the real question involved in these matters is not about the non-issuance of the requisite notice, but if it has been addressed/sent to the appropriate person i.e, the "employer".
' Because according to Mr. SaleemSehgal, it is only the Factory Manager of Millat Tractor, who had the power of hiring and firing and thus exclusively falls within the terms "employer". I have considered the definition of the word "employer" given in section 2(x) (b) of I.R.O., 2002 which leaves no room for doubt that it includes any person responsible for the directions, administration, management and control of the establishment. Undoubtedly, the Managing Director of a company is the head of the institution, who being the Chief Executive, of a juristic person, is the overall Incharge of the management and the administration of the company, whereas the factory manager is an Officer subordinate to him, thus if under the law, the purpose of the grievance notice is that a workman instead of rushing to the Court straightway, which may involve expenses and cause botheration to a poor man, should in the first instance, make an attempt to approach the employer for the redressal of his grievance and that may solve his problem, the Chief Executive was the right person, to whom the notice should be sent. And the Chief Executive on account of his superior position, could either himself or through the Board of Directors, take a conclusive decisions, particularly about the policy matter of making the daily wager as permanent or not, or he could conveniently refer or send the matter to the Factory Manager, an officer subordinate to him, for an appropriate action. Therefore, in view of the broad spectrum of the definition of "Employer" the purpose of the law behind the issuance of the grievance notice, the same issued to the Chief Executive, can be held to have been issued to an authorized person, and thus on account of a technical reason, the grievance petition could not be dismissed. Therefore, I am constrained to hold that the grievance notice was duly issued and the reasoning propounded by the learned Labour Court, to non-suit the appellants on this ground, cannot sustain and is hereby set aside.
12. As regards the question, whether the cause of action, in favour of the appellants, is re-accruing or was the time bound and therefore, having not pressed for their permanent employment immediately on the completion of the probationary period, if the claim of the appellants is rendered out of/beyond limitation, suffice it to say that if a workman, who is working against a permanent post and performing the duties of a permanent nature and has successfully completed his probationary period, but does not promptly press for his permanent employment, may be under the fear to avoid a situation of earning, a displeasure of his employer, if the latter is not ready and willing to confirm him immediately, rather continues to service silently with an object to inspire more confidence and trust of the employer, shall not lose his right to be made permanent, only for the reason that he has been somewhat indolent, because the principles of equity regarding delay in enforcing the statutory rights, the rules of waiver and estoppel, etc, shall not come in his way, unless it is a case of some express or overt act on part of the workman, which brings the matter within the purview of the above doctrines, and the appropriate defence is set out by the employer in this behalf in the written statement and is also able to prove the same. However, this position is conspicuously missing in the present case. Therefore, the, workman, who is either a probationer or a temporary employee and is otherwise qualified for the permanent recruitment, undoubtedly, shall have a right at any point of time, but during the continuity of his service to ask his employer to make him permanent and if the needful is not done, legal recourse may be adopted without there being any danger of limitation. The grievance notice in these cases, was served upon the respondents on 14-4-2003 and there is no discord between the parties that the grievance petitions were filed within a period of one month as prescribed by section 46 of the I.R.O.
2002. Therefore, subject to the rule and the proof about their continuity in service of a job of the permanent nature, against a permanent post, the appellants cannot be said to have no cause of action for the reasons mentioned by the Labour Court, rendering their petitions either incompetent or out of limitation. Therefore, the view of the learned Labour Court in this regard, too cannot sustain.
13. To my mind, the key, fundamental and pivotal question involved in the matters is, whether the appellants were working against the permanent posts and were performing the duties of permanent nature, in this regard, the onus was upon the shoulder of the appellants . As has been mentioned while narrating the facts, that in their petitions, the appellants stated as working in the respondents' factory as the technicians, drivers, crane operators, storekeeper: etc. And the length of their service, being 3 to 16 years. But, they themselves have conceded of not receiving any salary for the Holiday, or the bonus, which was given to the permanent workmen: They however, attempted to improve their case in their evidence, e.g when Abdul Qadir, one of the appellants, appeared in the cage titled Abdul Qadir Khan, etc. v. Millat Tractors, etc. As P.W.-1, and states that "All of us used to get our salaries on monthly basis. On the 1st or 2nd of each succeeding month, the cashier used to come to our machine Division, where he used' to give us our salaries on the monthly basis after obtaining our signature. We used to get two weekly holidays namely Saturday and Sunday and we used to get salaries for the said holidays. We also used to get salary for the public holidays like Eid, 23rd March and 1st May, etc. We were given computer cards when we used to enter in the factory through gate No,4 and we used to return these cards on the gate of out way back after duty hours. We used to get bonus of Rs,700 on each Eid. The Eid bonus amounts were given to the workers by the cashier after obtaining theirsignatures". But this statement is not only beyond the scope of the petitioners, rather contradictory thereto. Therefore, the rule that no person shall be allowed to prove his case beyond the scope of his pleadings, is squarely applicable to the matters in hand. Furthermore, except their own statements or in one or two cases, the statement of the Union Leaders, there is no independent or probable evidence to prove that the appellants were working on the permanent posts and their jobs were permanent in nature, meaning thereby that without the appellants or any other person working on that specific assignment, the respondent could not accomplish their object, e.g. if there were 5 cranes in the company, and all have to be necessarily operated daily, but only two operators were recruited on permanent basis and remaining three were kept on daily wages but they are performing their duties akin to the permanent employees, obviously, the post and its nature is permanent in character and thus on the expiry of the requisite period, the daily wagers shall become entitled to be made permanent.
This also could be true for the technicians, machine-men, helpers, etc. But for the above, the appellants were required to establish on the record, the essential requirements of the respondents for particular assignments/jobs and to show the shortfall of the permanent employees. But this was not done through the production of any independent evidence. The record of the company was never summoned before the trial Court and even no effort was made in this behalf in appeals.
Therefore, I share the view of the learned Labour Court that the appellants have failed to discharge the burden on the key issue.
14. As regards the argument of learned counsel for the appellants that certain provisions of the Standing Orders, have been disregarded by the respondents, suffice it to say that if it was so and it had the effect of damaging the appellants' right's, they should have agitated their grievance at the appropriate point of time. But such lapses now cannot be held to be relevant for the determination of the key issue, which has gone against the appellants.
15. Before parting, it may be pertinent to mention here that I would have considered with all the seriousness the argument of the appellants' side, that the respondents as a device and with an object to defeat the rights of the labour/workmen class, kept them on daily wages and this amounts to a fraud upon the labour laws. But unfortunately, the appellants have failed to prove the key issue, upon which the fate of this proposition was dependent. And thus on account of the lack of proof in this behalf, such a serious vice cannot be subjectively imputed to the respondent.
Therefore, I am refraining myself to dilate in this behalf any further.
' Furthermore, because of the dismissal of these appeals, I amalso not dilating upon the issue raised by Mr. Sehgal that because of the termination order, as alleged by the appellants, fresh notices and a grievance petition was required and those already pending were rendered infrucutous, because I have already held that the appellants have failed to prove their case entitling them for permanent employment, resultantly, the question of termination or otherwise has lost its relevancy.
In the light of above, the conclusion is that the appellants have failed to prove their employment on permanent basis against the permanent post, and resultantly, I do not find that they are entitled to the grant of the relief prayed for in their petitions. These appeals thus have no merits and the same are hereby dismissed.